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Valuing Assets in a High Net-Worth Divorce
A complex divorce tends to center around conflict and is related to two key issues — parenting responsibilities and property division. Both parties have a lot at stake and are invested in each matter. Hence, each party has much to lose if the outcome is not in his or her favor.
Specifically, with regard to property division, the number and type of property that is potentially subject to division can require a complicated analysis to determine if the property qualifies as marital and what the likely value is for that property. While one spouse may think he or she has a complete picture of all the property owned by the other party, analyzing and verifying the information listed in the mandatory financial affidavit must serve as the starting point for division.
The issue of property valuation is particularly important in divorces where considerable wealth has accumulated during the marriage. Securing proper valuations of all marital assets is crucial to ensuring that the division of property is fair and will provide the income/financial resources as intended.
Modifying Spousal Maintenance Awards
Transitioning from a two-income household down to one, following divorce, is a large adjustment for most individuals. In most instances, though, each party is able to financially support himself or herself, excluding child support, without contribution from the former spouse. However, maintenance, or spousal support, is sometimes necessary to sustain a former spouse while he or she, for example, gains new skills or training to make him or her more employable.
Illinois amended the laws on spousal maintenance in 2015 to make these awards more predictable by removing any subjectivity on the amount and duration of the maintenance obligation — although, a Court's obligation to first determine if maintenance is appropriate remains the same. A set formula now determines how much and for how long maintenance awards will be, and only marriages of 20 years or more are eligible for permanent maintenance, which is left to the Court's discretion to decide.
When and How Parenting Responsibilities May be Restricted
Raising a child is no small task, and includes an incredible amount of responsibility. Most parents try, and have a vested interest in, basing their decisions on what is best for their child. This selfless tendency is part of the reason why the law favors awards of shared parenting time between parents in divorce or paternity proceedings.
Children thrive most when both parents play a large and consistent role in their lives; though in practice, one parent usually provides the majority of the childcare. However, Courts have the authority to deviate from the shared model when circumstances warrant such a decision, including and up to giving one parent sole physical and legal parental responsibilities of the child.
Even if one parent is given sole responsibility, the other is usually granted some degree of visitation and communication with the child to prevent the total loss of a parent. This type of restricted visitation is used when the child's safety or development is threatened, but the parent with primary responsibility for the child cannot impose or deny visitations without a Court order, even if his or her concerns are legitimate.
Enforcing Custody Orders Across State Lines
Balancing work and family following divorce is bound to involve many challenges and tradeoffs, particularly when child custody is shared. The logistics of transferring a child between parents and households is often tricky, especially as the needs of the child change over time. These difficulties exist when parents live in close proximity to one another. However, they are greatly magnified by distance.
Once state lines are crossed, visits may become less frequent. Visits may also last for days or weeks on end instead of just one weekend. When distance is a factor in visitation, one concern that either parent may have is enforcing the terms of the parenting plan. If a parent decides to withhold visitation, limit communication, or refuse to return the child as agreed upon, then the other parent will likely need to initiate legal action to force the other parent to comply. Still, with parents accessing Courts in different states, the possibility exists that Courts could issue conflicting custody orders resulting in the child pinging back and forth between parents. This situation is not in the child's best interest, and 49 states, including Illinois, have passed a uniform law that governs how Courts should treat custody disputes that cross state lines.
Mental Health Issues and Divorce
Divorce is an emotional process that can sometimes bring out negative aspects of a person's personality. However, these behaviors are momentary lapses. When one spouse has a mental health issue, what is already a difficult process becomes exponentially more complicated.
Marriage to someone with mental health issues that manifest as erratic behavior, severe mood shifts and the potential to harm him/herself or others can quickly become overwhelming.
A study conducted in 2011 looked at the impact of mental health disorders on the rate of marriage and divorce found that these issues increased the likelihood of divorce from 20 to 80 percent, varying by the type and degree of disorder present. Mental health issues often result in high conflict relationships that are hard to endure long-term. If a couple shares children, the implications of mental health disorders on a spouse's ability to parent effectively and safely become a major concern that Courts do carefully consider.
How Courts Decide Custody in Illinois
No issue is more important to a parent than the role he or she plays in a child's life. The importance of this active participation in a child's life particularly comes into play during divorce. The process of separating and dividing a household and family brings unavoidable change to a parent's relationship with his or her child. In an ideal situation, parents work out a shared custody arrangement so the child does not lose too much interaction with either parent. Still, parents do not always agree on what is best for the child.
If a Court has to intervene and decide child custody, Illinois has a specific set of provisions that govern how Judges should make these determinations. Currently, Judges have discretion to order the custody arrangement they decide is in the best interests of the child. However, several groups supporting the rights of fathers in Illinois are pushing for legislation that would create a presumption in favor of joint custody, requiring a parent who opposes an agreement to argue why joint custody is not appropriate.
Life Changes and So Can Parenting Plans: The Modification Process
When couples divorce, crafting a parenting plan to regulate child custody is one of the more challenging aspects of the process. The age of the child and the employment of each parent are major factors affecting the type of arrangement that best suits the circumstances of the family. The best interests of the child is the primary motivating factor in these decisions, but discerning what a child needs to ensure the best possible opportunity to develop is likely to change over time. What is best for a child at the age of six is likely to differ substantially from what a child might need at the age of 15.
Further, the circumstances of the parents may change as jobs come and go and other life adjustments are made over time. As a result, allocating parenting time and responsibilities may need to be shifted to address the changing needs of the child and the ability of each parent to adequately fulfill these responsibilities. While each parent is obligated to follow the terms of a parenting plan, Illinois law does allow parents to request modification under certain circumstances.
Why to Consider Drafting a Prenuptial Agreement
In the days leading up to engagement and marriage, thinking about the negative possibility of divorce is not a topic most couples want to contemplate. Visions of growing old and all the things they hope to accomplish together usually overtake any concerns about the relationship not lasting.
While expecting a marriage to last a lifetime is the reasonable way to approach a new relationship, no one knows the future. Hammering out how to handle property division and payment of support in the event of divorce through the use of a prenuptial agreement may not be romantic or optimistic, but sometimes pragmatism is more important in the long-term. These conversations are especially important if a couple is older and/or is bringing a lot of assets and other financial resources into the marriage.
Figuring out these issues before divorce is on the table will make the process of dissolving the marriage easier by reducing the likelihood of disputes and the time needed to negotiate a settlement. The terms of these agreements must be memorialized in writing and executed prior to marriage. Further, Illinois regulates the formation and types of provisions these agreements can legally contain.
Asking for Temporary Support While a Divorce is Pending
Regardless of whether the decision to divorce is mutual, at least one spouse will typically deal with substantial financial fallout. While some couples make enough money individually to weather the repercussions of divorce with minimal adjustment, in many households one spouse makes substantially more than the other. This disparity means that the lesser-earning spouse is forced to scramble for alternative ways to obtain money.
Borrowing from family and friends or selling possessions are methods commonly used to make up the shortfall. While this situation is hardly sustainable in the long-term, the situation should still be addressed in the short-term to prevent irreparable financial loss. Illinois allows parties with pending divorces to request temporary support until the dissolution is finalized and property division and spousal/child support is established on a more permanent basis.
Divorce Complicates Parenting, Including Moving Out-of-State with Your Child
The mobility of Americans is one the hallmarks and benefits of living in this country. Moving to a new place for a job, better schools or a different lifestyle are common reasons people give for uprooting their family to a new home and community. Moving with children always brings additional considerations because leaving friends and transitioning to a new school is difficult for many children.
If a parent decides to move following a divorce, this decision is even more complicated. Because of the importance of this relationship, divorced parents who share custody of a child are not free to independently decide to move away with a child. Consultation with the other parent, and at times a family Court judge are necessary to stay within the bounds of the law and the parenting plan. Taking a child to another jurisdiction without permission can lead to serious consequences, including criminal charges for kidnapping or visitation interference.
Introducing The Law Office of Nicholas W. Richardson
Nicholas W. Richardson is an experienced divorce lawyer and mediator whose comprehensive legal knowledge, commitment to clients and reputation for results bring lasting solutions to your problems.
The Law Office of Nicholas W. Richardson, P.C. serves clients in Illinois cities such as Palatine, Schaumburg, Inverness, Arlington Heights, Rolling Meadows, Glenview, Hoffman Estates, Bartlett, Des Plaines, Elk Grove Village, Mt. Prospect, Niles, Prospect Heights, Skokie, Streamwood, Barrington, Buffalo Grove, Wheeling, and others throughout Cook County, DuPage County, McHenry County, and Kane County.
Results listed are not a guarantee or indication of future case results.
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